10 responses

  1. Well, I have cats, and for them flowers are purgatives. [sigh] That’s a properly named dog, though.

    So here’s my choice of what’s important: will you be able to post on the Supremes’ rulings on the Voting Rights Act and affirmative action, or will your day job be in the way?

    Eric Hines

  2. Dear Mr. Hines,

    I really haven’t thought that far ahead. Neither of those subjects hold very much interest for me. I suppose that’s because I don’t see cases involving the Voting Rights Act, and because the affirmative action cases, at least in the context I think you are concerned about, seldom cross my field of vision either.

    All the best.


  3. Strange that a proceduralist thinks the answer is in the procedural question. Kagan, Breyer and Ginsburg join Kennedy (and Sotomayor) in the DOMA case finding that there is standing and requiring that the merits be reached, which was to hold that the federal government had to accept a state’s definition of marriage. Roberts and Scalia — the latter in a bombastic dissent, perhaps this is redundant — pillory Kennedy’s conclusion that there is standing. In fact, Scalia seems more upset (is this possible?) about the majority in the DOMA case finding standing than he does in the federalism/equal protection rationale that DOMA must yield to a state’s definition of marriage. Then in the Prop 8 case, Kagan, Breyer and Ginsburg go racing across the dance hall to join hands with Roberts and Scalia concluding that there is no standing in the (identical from a standing standpoint) Prop 8 case, and prevent any ruling on the merits of the Prop 8 case. They nearly collide with Thomas running the other direction to bring Kennedy within one vote of being able to force a ruling on the merits in the Prop 8 case. Dear me, what could it all mean? I am just a simple law professor lacking Senate confirmation. I must avert my gaze.

  4. Dear Dean Borchers,

    You have perfectly captured the view from the bottom of the federal judicial food chain. For example, let’s say I just hired one of the best and brightest just out of law school to start clerking for me. Let’s call her Jill. Very nice. Very bright. Very earnest. Assume she starts on August 1, 2013. On September 1, 2013, while I am sitting in the United States District Court for the District of Nirvana (by designation), I get a same-sex marriage case. I ask Jill to write a memo explaining the neutral principles that I should take away from these two cases. Now, assume further that I find dear Jill two weeks later huddled in her office mumbling incoherently. Do I recommend electroconvulsive therapy (ECT) or merely bed rest?

    All the best.


  5. I’d say try the drugs. A mild SSRI and maybe some valium and she should be functional in a couple of weeks. I once described my old boss’s decision in Romer v. Evans (the case striking down on the rational basis test Colorado’s initiative 2), and the foundation of the DOMA case, as resembling the famous Escher drawing “Ascending and Descending” in which each individual part looks fine, but the overall picture is baffling. I used to think he didn’t read anything I wrote, but busted. However, at least in my profession I get to call the Court out, rather than trying to make sense of all of it. Poor Jill, Best, PJB.

%d bloggers like this: